State v. Labossiere ( 2020 )

560
Submitted December 6, 2018, affirmed November 18, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
DARNELL JEAN LABOSSIERE,
Defendant-Appellant.
Washington County Circuit Court
17CR09877; A164723
477 P3d 1
Defendant appeals a judgment convicting him of unlawful use of a weapon,
ORS 166.220(1)(a), arguing that the trial court erred in declining to give the
jury a witness-false-in-part instruction. Defendant argues that he was entitled
to the instruction because the jury could have concluded that the victim had
consciously given false testimony. The state responds that the court did not err
because the victim’s testimony did not support a reasonable inference that she
had consciously lied at trial. Held: Even assuming that the court erred in declin-
ing to give the requested instruction, defendant has not established that the
alleged error was prejudicial.
Affirmed.
Beth L. Roberts, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
DeHOOG, P. J.
Affirmed.
Cite as 307 Or App 560 (2020) 561
DeHOOG, P. J.
Defendant appeals a judgment convicting him of
unlawful use of a weapon (UUW), ORS 166.220(1)(a), argu-
ing that the trial court erred in declining to give the jury a
witness-false-in-part instruction as requested.1 Defendant
argues that he was entitled to the instruction because the
jury could have concluded that the victim, S, had consciously
given false testimony when she testified that defendant had
swung a baseball bat at her head, contrary to her earlier
statement to the police that defendant had wielded a wooden
mop or broom handle in that manner. Defendant argues that
he was prejudiced by the court’s error because the state’s
theory supporting the UUW charge expressly relied on his
alleged use of a bat. In response, the state contends that the
court did not err in declining to give the requested instruc-
tion, because the victim’s testimony did not support a rea-
sonable inference that she had consciously lied at trial. We
conclude that, even if it was error not to give the requested
instruction, any such error was harmless. Accordingly, we
affirm.
“[W]e ‘review a trial court’s failure to give a
requested jury instruction for errors of law, and evaluate
the evidence in the light most favorable to the establish-
ment of the facts necessary to require the instruction.’ ”
State v. Payne, 366 Or 588, 603, 468 P3d 445 (2020) (quoting
Ossanna v. Nike, Inc., 365 Or 196, 199, 445 P3d 281 (2019)).
At the time of the charged events, defendant lived
with S, who was then his girlfriend, and an elderly woman,
K. K suffered from various health issues, including limited
eyesight, and S acted as her caretaker. At around 8:00 p.m.
one evening, S and K were watching television in the liv-
ing room when they heard a “loud bang” come from defen-
dant’s room. S went to defendant’s room to check on him.
S found defendant in an agitated state, and, when she
entered defendant’s room, he grabbed her by the back of
the arm and pushed her out into the hallway. S’s arm was
bruised as a result. S returned to the living room and sent
K’s sister a cell phone text with the message “ ‘9-1-1 call,
1
Defendant was also convicted of resisting arrest, ORS 162.315, but he
appeals only the UUW conviction.
562 State v. Labossiere
please.’ ” Defendant then entered the living room carrying
a wooden mop or broom handle and, according to S, began
“banging it on the floor and swinging it around,” threaten-
ing to smash the television unless one of the others turned it
off. K, who could not clearly see defendant due to her vision
problems, asked him why he was swinging her baseball bat,
which she kept at the door for protection. In response, defen-
dant in fact picked up K’s bat and approached S.
S gave conflicting accounts as to what had happened
next. Later the same night, S told the police that defendant
had swung the bat at her head, stopping just short of mak-
ing actual contact. Two weeks later, however, S described
the incident differently. At that time, she told the police that
defendant had swung the wooden stick at her head, and not
K’s bat. Finally, at trial, S once again described defendant
as having swung a bat at her head, and not the wooden
stick.
Aside from those discrepancies, the testimony at
trial was largely consistent. The evidence showed that, for
the next hour or so, defendant had intimidated S by hitting
the floor, walls, and doors with the bat while staring at S
and K. K’s sister eventually arrived and came in, at which
point she and K were able to call 9-1-1. During that call, K
mistakenly said that defendant had hit S with a bat. At trial,
K testified that defendant had swung a bat towards their
heads but had not hit either of them; she explained that she
had erroneously reported on the 9-1-1 call that defendant
had hit S with the bat because she had heard a scuffle when
S first went to check on defendant and “assumed he had hit
her with the bat.” The police arrived shortly thereafter, and,
after a short struggle with defendant, arrested him.
Defendant was indicted on two counts of unlawful
use of a weapon (one for actions allegedly directed towards
S and another for actions alleged as to K), ORS 166.220(1)(a);
fourth-degree assault, ORS 163.160; and resisting arrest,
ORS 162.315. The jury found defendant guilty of resisting
arrest and the count of unlawful use of a weapon related to
S; the jury acquitted defendant of the remaining counts. As
alleged in the indictment, the basis of defendant’s unlawful-
use-of-a-weapon conviction was his conduct in “carry[ing] or
Cite as 307 Or App 560 (2020) 563
possess[ing] a dangerous weapon, to wit: a bat, with intent
to use said weapon unlawfully against [S].”
At trial, defendant asked the court to give the jury
a witness-false-in-part instruction.2 The applicable uniform
jury instruction provides:
“Sometimes a witness may give incorrect or even incon-
sistent testimony. This does not necessarily constitute
lying on the part of the witness. The witness’s testimony
may be an honest mistake or confusion. The witness may
simply forget matters, or his or her memory of an event
may contain honest inconsistencies or contradictions. Also,
different witnesses may observe or recount the same event
differently.
“However, if you find that a witness has intention-
ally lied in part of his or her testimony, you may, but are
not required to, distrust other portions of that witness’s
testimony.
“As jurors, you have the sole responsibility to determine
which testimony or portions of testimony you will or will
not rely on in reaching your verdict.”
UCrJI 1029.
In requesting a witness-false-in-part instruction,
defendant emphasized that, between her two statements to
the police and her testimony at trial, S had given a total
of three accounts of defendant’s conduct, which varied as
to the critical question of whether defendant had swung a
bat or a wooden stick at her head. Defendant argued that
such a disparity was “more than kind of just a confusion.”
Nonetheless, the trial court declined to give the requested
instruction, reasoning that a court must consider whether
there has been an act of willful perjury before giving such
an instruction. Here, the court concluded that, even though
there was “some confusion and some inconsistency” in S’s
testimony, it was not “a situation where under oath there’s a
willful perjury.”
2
The record does not contain the text of the instruction that defendant
requested. On appeal, however, defendant refers to the applicable uniform jury
instruction, and the state does not dispute that the requested instruction was
substantially the same.
564 State v. Labossiere
On appeal, defendant argues that the trial court
erred because there was sufficient evidence for the jury to
infer that S had consciously given false testimony. Defendant
emphasizes that S’s trial testimony conflicted with “her
inconsistent out-of-court statements and that those state-
ments were also inconsistent with [K’s] testimony.” Defendant
argues that the jury could reasonably have inferred that
S had consciously given false testimony, because: (1) S gave
conflicting accounts in her two police interviews and con-
tradicted one of them at trial; (2) the conflicting statements
related to “a central matter of the reported event”; and (3) “a
person is unlikely to confuse a broom handle with a metal
bat in the context of having it swung at one’s head.” Lastly,
defendant emphasizes that K told the police that defendant
had actually hit S with the bat. Those inconsistencies, defen-
dant argues, “permit the inference that [S] consciously tes-
tified falsely, because that pattern of inconsistency around
a central issue suggests that the incident, or that portion
of it, was fabricated.” Defendant further argues that the
court’s error was prejudicial and requires reversal because
the credibility of S’s testimony was critical to proving the
state’s specific theory, which was that defendant had swung
a bat, and not a wooden stick, at her head.
The state responds that the trial court did not err in
refusing to instruct the jury as requested. The state argues
that the record does not support an inference that S testified
falsely, because there was only “one inconsistency between
[S’s] account to police and her trial testimony.” Quoting our
decision in State v. Walker, 291 Or App 188, 194, 419 P3d
794 (2018), the state argues that the witness-false-in-part
instruction was not required as a matter of law in this case
because the inconsistency was “ ‘the type of inconsistency
common to mistake, confusion, or the differences in recollec-
tion that are innate to human perception.’ ” As a result, the
state concludes, the trial court did not abuse its discretion in
declining to give the requested instruction here.
Both parties characterize the trial court’s refusal
to give the witness-false-in-part instruction as a discre-
tionary decision, which we would review for abuse of dis-
cretion. Following the briefing of this case, however, the
Cite as 307 Or App 560 (2020) 565
Supreme Court clarified the applicable standard of review
in Payne. The court explained in Payne that, although we
review a trial court’s choice from among various requested
instructions for abuse of discretion, 366 Or at 603 n 4, we
review a trial court’s complete refusal to give a requested
jury instruction for legal error. 366 Or at 603. Because this
appeal raises only the latter issue, we review for legal error.
As a general matter, “a criminal defendant is enti-
tled to have the jury instructed in accordance with his or her
theory of the case if the instruction correctly states the law
and there is evidence to support giving it.” Payne, 366 Or
at 603 (internal brackets and quotation marks omitted). In
specific regard to the witness-false-in-part instruction, trial
courts are statutorily required to give the instruction “on
all proper occasions.” ORS 10.095(3). As the Supreme Court
held in Payne, a “proper occasion” exists “when, considering
the testimony and other evidence viewed in the light most
favorable to the party requesting the instruction, the trial
court concludes that sufficient evidence exists for the jury to
decide that at least one witness consciously testified falsely
and that the false testimony concerns a material issue.” 366
Or at 607.
Here, the trial court arguably focused on whether it
believed that the evidence showed that S had perjured her-
self, rather than inquiring whether the evidence was suffi-
cient for the jury to draw that inference, as Payne instructs.
If, in fact, that was the trial court’s focus, it was misdirected.
We need not reach that issue, however. Cf. State v. Kinstler,
307 Or App 517, 478 P3d 595 (2020) (addressing whether
the witness-false-in-part instruction was required and con-
cluding that it was not). That is, even if we were to agree
with defendant and conclude that the trial court had erred
in declining to give the requested instruction, we would still
be obligated to consider whether the court’s error had been
prejudicial. See Payne, 366 Or at 608-09 (analyzing whether
a court’s error for failing to give the witness-false-in-part
instruction was prejudicial). Because, as we explain below,
we conclude that defendant has not demonstrated that the
alleged error was prejudicial, we need not reach the under-
lying merits of his argument on appeal. See State v. Simon,
566 State v. Labossiere
294 Or App 840, 849, 433 P3d 385 (2018), rev den, 365 Or
502 (2019) (recognizing that a defendant has the burden of
establishing that a court’s error was not harmless).
“Under Article VII (Amended), section 3, of the
Oregon Constitution, we must affirm the judgment below if
we determine that there was ‘little likelihood that the error
affected the verdict.’ ” Payne, 366 Or at 609 (quoting State v.
Davis, 336 Or 19, 33, 77 P3d 1111 (2003)) (internal brackets
omitted). In making that determination in the context of a
court’s refusal to give a requested jury instruction, we must
“ ‘consider[ ] the instructions as a whole and in the context
of the evidence and record at trial, including the parties’
theories of the case with respect to the various charges and
defenses at issue.’ ” Payne, 366 Or at 609 (quoting State v.
Ashkins, 357 Or 642, 660, 357 P3d 490 (2015)).
Here, defendant argues that the court’s error requires
reversal because S’s testimony was critical to the state’s the-
ory of the UUW charge—that defendant had swung a base-
ball bat at her head. Defendant seemingly acknowledges
that the jury’s acquittal of him on the fourth-degree-assault
charge indicates some skepticism of S’s testimony notwith-
standing the lack of a witness-false-in-part instruction;
however, he focuses his prejudice argument on the UUW
charge.3 Defendant argues that, in light of the specific fac-
tual basis for the UUW allegation, that is, that defendant
had “carr[ied] or possess[ed] a dangerous weapon, to wit: a
bat, with intent to use said weapon unlawfully against [S],”
(emphasis added), the jury could have reasonably inferred
that S consciously shaded her testimony so as to support
that allegation, which her previous statement that defen-
dant had swung a mop or broom handle at her would not
3
With respect to the fourth-degree assault charge, defendant was indicted
for “unlawfully and recklessly caus[ing] physical injury to [S].” Defendant
acknowledges that the factual basis for the fourth-degree assault charge was S’s
allegation that defendant had grabbed her by the arm and forcefully shoved her
into the hallway, leaving bruises on her arm. We note that defendant was acquit-
ted of that charge and, thus, giving the witness-false-in-part instruction would
not have affected that verdict. Defendant does not contend that the jury could
have inferred that S consciously testified falsely about the facts in support of the
fourth-degree assault charge or that, as a result of that testimony, the instruction
could have had an effect on the UUW verdict that he now appeals.
Cite as 307 Or App 560 (2020) 567
have done. As a result, defendant argues, we cannot con-
clude that the court’s failure to give the witness-false-in-
part instruction had “little likelihood” of affecting the guilty
verdict on that charge. In defendant’s view, the “purpose” of
the witness-false-in-part instruction “is to guide the jury in
how they may properly consider the testimony of someone
who consciously testifies falsely in one part of her testimony.”
(Emphasis in original.) Defendant argues that, because the
jury did not receive that guidance, “it cannot be said that
the error was unlikely to have affected the verdict.”
We disagree that any error in declining defendant’s
request was prejudicial. In support of our conclusion that
any error here was harmless, we again rely on the Supreme
Court’s decision in Payne. In Payne, the defendant was con-
victed of third-degree sexual abuse after the complainant
had reported a sexual encounter with him as nonconsen-
sual, while the defendant maintained that the encounter had
been consensual. 366 Or at 590-91. At trial, the officer who
had taken the complainant’s account of the encounter tes-
tified that the complainant had given a race-based descrip-
tion of the defendant as a part of her explanation for why
she had been unable to leave the encounter. Id. at 592. In
her testimony at trial, however, the complainant repeatedly
denied having described the defendant in terms of his race,
and, during cross-examination, she protested that defense
counsel was trying to portray her as a racist. Id. at 591. The
defendant requested the uniform witness-false-in-part jury
instruction, but the trial court rejected his request. Id. at
593. Ultimately, the Supreme Court held that the trial court
had erred and that the error was harmful. Id. at 608, 611.
In drawing those conclusions, the court rejected the state’s
rationale that any error was harmless because, in part, “the
jury was adequately instructed on how to evaluate the cred-
ibility of witnesses” and “the instruction demands nothing
of the jury and merely conveys a common-sense principle.”
Id. at 609 (internal quotation marks omitted).
The court reasoned in Payne that “the general jury
instructions did not tell the jury what it could do if it deter-
mined that a witness consciously testified falsely and so did
not constitute the equivalent of the witness-false-in-part
568 State v. Labossiere
instruction.” 4 Id. at 609. Additionally, the court described
three benefits that the instruction would provide a jury.
First, “the witness-false-in-part instruction serves an
important advisory function because it informs a jury of its
duty to scrutinize a witness’s testimony.” Id. at 610. Second,
it “undercuts the presumption that sworn testimony is truth-
ful.” Id. And third, it “permits the jury to draw an inference
that a willfully false witness who has violated her oath in
one particular [portion of her testimony] may have well done
so in others.” Id.
Ultimately, the court concluded that the refusal to
give the instruction was prejudicial due to its potential role
in guiding the jury’s ultimate decision whether to believe
the complainant or the defendant as to the issue of consent.
Id. The court reasoned that, because there had been a per-
missible inference that the complainant had willfully lied
about whether she had described the defendant in racial
terms, the instruction would have “inform[ed] the jury of
its ability to distrust other portions” of her testimony and
assisted the jury in making the determination as to which
party was being truthful about the nature of their encoun-
ter. Id.
Here, the alleged error could not similarly have
prejudiced defendant. The focus of defendant’s appeal is
his conviction for UUW related to S. As defendant frames
it, the state’s theory with respect to that count “was that
defendant had swung the charged weapon, the bat, against
[S]’s head.” And, defendant reasons, that was the specific
4
The Supreme Court summarized the relevant general jury instructions
given in Payne and the state’s argument about them:
“The jurors were instructed that, ‘in evaluating each witness’s testimony,’
they could consider ‘the manner in which the witness testified,’ ‘the nature or
quality of the witness’s testimony,’ ‘evidence that contradicts the testimony
of the witness,’ and ‘evidence concerning the bias, motives, or interests of the
witness.’ According to the state, those instructions, coupled with the general
instructions that the jury had the ‘sole responsibility to make all of the deci-
sions about the facts in the case’ and was required to ‘evaluate the evidence
to determine how reliable or how believable that evidence is,’ adequately told
the jury of its duty to assess the complainant’s credibility.”
366 Or at 609. The state does not make that argument here. Nevertheless, we
note that the jury was given general instructions almost identical to those that
the court discussed in Payne.
Cite as 307 Or App 560 (2020) 569
fact as to which S had been inconsistent. Thus, according to
defendant, the ultimate factual determination that the jury
was required to make in reaching its verdict was the very
fact that the requested instruction would have drawn into
focus. In defendant’s view, therefore, the trial court’s refusal
to give the instruction was prejudicial. For the reasons that
follow, however, we disagree.
As the Supreme Court’s holding in Payne reflects,
the principal purpose of the witness-false-in-part instruc-
tion is to assist the jury in assessing the credibility of a
witness’s testimony once it has found that the witness has
perjured herself in some other aspect of her testimony. See
366 Or at 610 (one purpose of instruction is to “inform[ ] the
jury of its ability to distrust other portions of a witness’s tes-
timony”). The instruction is not intended to assist the jury
in determining whether a witness has testified falsely in the
first instance. Here, however, defendant’s argument differs
significantly from the rationale in Payne. Defendant does
not argue that, because S perjured herself as to defendant’s
weapon of choice, she may also have testified falsely as to
some other aspect of the case. Rather, defendant emphasizes
that the evidence supported the inference that S perjured
herself as to the “critical issue” of whether he had swung a
baseball bat at her head. Thus, the purpose that defendant
identifies for giving the instruction here does not align with
Payne.
Defendant’s theory as to how S perjured herself
precludes a finding of prejudice. That is so for two reasons.
First, the jury’s guilty verdict on the UUW charge at issue
indicates that the jury did not believe that S had lied about
defendant’s asserted “critical issue,” despite the evidence
of S’s inconsistent accounts as to what particular weapon
defendant had unlawfully used against her. Thus, even
if the trial court had given the requested instruction, the
jury’s finding regarding the “critical issue” would have been
the same.
Second, in contrast to Payne, even if the jury in this
case had determined that S’s testimony about defendant’s
use of a bat was false, defendant does not identify any other
jury findings that the witness-false-in-part instruction could
570 State v. Labossiere
have informed. Defendant does not contend, for example,
that, because the jury could have found that S lied about the
specific weapon that defendant had used, it might therefore
have found that defendant did not use a weapon against her
at all. See id. (instruction informs jury’s assessment of other
parts of a witness’s testimony). Thus, whether or not S’s
inconsistencies rendered the witness-false-in-part instruc-
tion appropriate in this case, defendant has not established
that he suffered harm as a result of the trial court’s alleged
error. Accordingly, we affirm.
Affirmed.